A trial judge's direction framing the central issue as whether the jury 'accepts' the accused's explanation, combined with a statement that prosecution and defence evidence 'cannot both be right', without a Liberato direction, constitutes a fundamental defect in the directions on burden of proof that precludes application of the proviso under s 568 of the Crimes Act 1958 (Vic), even where the prosecution case is very strong. Where the facts giving rise to a cultivation count are wholly subsumed by the facts giving rise to a trafficking count, it is oppressive to convict on both.
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